People v. Weathington

• Decision Date: 11 June 1991
• Docket Number: No. H007551,H007551
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Livingston WEATHINGTON, Defendant and Appellant.

Page 170

282 Cal.Rptr. 170

231 Cal.App.3d 69

The PEOPLE, Plaintiff and Respondent, v. David Livingston WEATHINGTON, Defendant and Appellant.

No. H007551.

Court of Appeal, Sixth District, California.

June 11, 1991.

Review Denied Sept. 19, 1991.

[231 Cal.App.3d 75] Michael B. McPartland, under appointment by the Court of Appeal, Petaluma, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., and John T. Murphy, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

PREMO, Acting Presiding Justice.

Defendant David Weathington appeals from conviction at jury trial of one count each of felony driving under the influence of alcohol with three or more priors for which he received a prison sentence, and misdemeanor driving on a suspended license. He claims that the court erred in instructing the jury and in refusing to bifurcate the trial of the priors. We agree with the latter contention, and therefore vacate the sentence. However, we affirm the judgment of conviction.

FACTS

On April 14, 1990, appellant drove into a gas station and pulled up at the full-service bay to buy gas. He exited his car and asked the attendant, Richard Gill, to fill the gas tank and check the oil. Gill noticed a fuel line leak, so appellant moved the car away from the gas pumps to be fixed. Exiting again, appellant confided to the cashier, Chris Olsen, that he had drunk a six-pack and felt good, and inquired where he could find a liquor store. Both employees thought appellant was intoxicated: he had slurred speech and staggered when he walked.

There was a liquor store across the street; appellant went there and returned from five to ten minutes later with a wine cooler for himself and sodas for the attendants. He got into the driver's seat of the car and started drinking the cooler.

The cashier called the police, who arrived about 30 minutes later. They administered field sobriety tests and arrested appellant. Appellant admitted to consuming four beers between 9:30 a.m. and noon, the wine cooler, and complained of a bad knee when he was unable to do the balance test. A blood sample was taken; the blood alcohol level was .25.

Appellant was charged with driving under the influence of alcohol with three or more priors (Veh.Code, §§ 23152, subd. (a), 23175) ¹ and driving with a suspended or revoked license (§ 14601.2, subd. (a)). The district attorney also alleged that appellant had prior convictions for driving with a suspended or revoked license (§ 14601.2, subd. (d)(2)).

Before trial commenced, appellant made a motion in limine "for the bifurcation of the trial as to the priors and concurrently for the sanitation of the complaint not to mention anything about his prior convictions." When the motions were denied, appellant admitted seven prior convictions of driving under the influence of alcohol (§ 23152, subds. (a), (b)) and six prior convictions of driving on a suspended or revoked license (§ 14601.2, subd. (a)). The jury was not informed of any of appellant's prior convictions; he stipulated that he had notice that his driver's license was suspended.

Appellant was convicted and sentenced to two years in state prison for driving under the influence of alcohol with three or more priors and to a concurrent 30 days in county jail for driving with a suspended or revoked license. This appeal ensued.

CONTENTIONS ON APPEAL

Appellant contends that the trial court erred when it refused to instruct the jury that the offense of being drunk and disorderly in public (Pen.Code, § 647, subd. (f)) was a lesser related offense to driving under the influence of alcohol.

Next, he claims he was prejudiced by the court's refusal to give the instruction he requested that pinpointed his defense to the charge, and then by giving, over his objection, instructions drafted by the district attorney which may have misled the jury.

Finally, he asserts the court erred by refusing to bifurcate the trial.

"DRUNK IN PUBLIC"

Appellant contends that since he was not under the influence of alcohol when he drove into the station, but became intoxicated while he was waiting for his car to be repaired, the court should have instructed on "the lesser related offense of being drunk and disorderly in public."

Penal Code section 647, subdivision (f), describes as misdemeanor disorderly conduct the act of being found "in any public place under the influence of intoxicating liquor, ... in such a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor, ... interferes with or obstructs or prevents the free use of any street, sidewalk, or public way."

The underlying offense, section 23152, subdivision (a), as relevant to these facts, makes it unlawful "for any person who is under the influence of an alcoholic beverage ... to drive a vehicle."

Appellant relies on People v. Geiger (1984) 35 Cal.3d 510, 530, 199 Cal.Rptr. 45, 674 P.2d 1303, for the proposition that fairness to the defendant requires that he receive instructions on related but not necessarily included offenses. He contends that his defense satisfies each of the three prongs of the Geiger test.

The first prong is that some basis must exist "other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged." (35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)

Appellant satisfies the first prong. Support for his defense can be plucked from the testimony of the gas station employees that his driving was not erratic nor out of the ordinary, and that they did not smell alcohol on his breath, although because of his statements and other conduct they thought he was intoxicated.

In addition, he explained his staggering by presenting evidence that major knee surgery in 1986 and a recent re-injury of the knee caused him to walk with a limp. To explain the slurred speech, he revealed that he had lost his partial plate which contained some of his front teeth. Finally, defense witnesses testified that he had been in their presence for some time earlier that morning before he had gone to the gas station and he had not drunk alcohol; he attributed his intoxication to "two potent wine coolers at the station."

Consequently, appellant established an evidentiary basis for the instructions. "[A] defendant's right to instructions does not turn on the court's assessment of the strength of the evidence, or on whether there is a conflict in, rebuttal to, or impeachment of the People's evidence. [Citation.]" (People v. Geiger, supra, 35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)

Second, Geiger requires that "the offense must be one closely related to that charged and shown by the evidence.... Although some evidence offered by the People or the defendant may indicate that the defendant has committed a crime other than that charged, instructions regarding that crime need not be given unless the evidence is also relevant to and admitted for the purpose of establishing whether the defendant is guilty of the charged offense." (35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)

The offenses are closely related. Both require a showing that the defendant is under the influence of an intoxicant, alcohol. Both require the showing of impairment of the defendant's abilities, albeit to a different level. Section 23152 requires the showing that the defendant's "physical or mental abilities are impaired to such a degree that he no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances." (People v. Cortes (1989) 214 Cal.App.3d Supp. 12, 15, 263 Cal.Rptr. 113.)

Penal Code section 647, subdivision (f), requires a showing that the defendant is unable to exercise care for his own safety or the safety of others or because of his condition, he obstructs a public way. Thus, for both offenses, the penalty attaches for misbehavior. (Cf. Gilbert v. Municipal Court (1977) 73 Cal.App.3d 723, 726-727, 140 Cal.Rptr. 897; Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 1058, 178 Cal.Rptr. 480.)

The Attorney General asserts that the defense never conceded that appellant was under the influence of alcohol at any place, let alone that he was unable to exercise care for his own safety on account of intoxication. However, in light of the trial court's refusal to instruct on Penal Code section 647, subdivision (f), this is not surprising. It is clear from the record that, in the words of Geiger's third requirement, appellant "reli[ed] on a theory of defense that would be consistent with a conviction for the related offense." (35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)

Although it was error to fail to instruct on the related offense, the error "is not prejudicial if 'it is possible to determine that ... the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions....' [Citations.]" (People v. Turner (1990) 50 Cal.3d 668, 690-691, 268 Cal.Rptr. 706, 789 P.2d 887.)

Such was the case here. For the jury to have acquitted on the charged offense, and to have convicted on the related offense, it would have to have found that appellant was not driving a vehicle at the time the effects of the alcohol he admitted he had drunk manifested themselves.

The question whether appellant was driving was put squarely to the jury by the instructions. ² The jury was told: "To constitute a violation of Vehicle Code Section 23152(a)-23175, there are two essential elements: One, driving a vehicle, and, two, while under the influence of an alcoholic beverage.

"The law states that a driver is a person who drives or is in actual or...